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HQ 964968




May 18, 2001

CLA-2 RR:CR:GC 964968 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.2000; 9503.41.0010

Mr. Floyd Sirico
Rogers & Brown Custom Brokers, Inc.
P.O. Box 20160
Charleston, SC 29413-0160

RE: Stuffed Articles in the Form of a Football, Elmo and Bob the Builder

Dear Mr. Sirico:

This is in regard to your letter to the Director, Customs National Commodity Specialists Division, New York, dated March 7, 2001, on behalf of Franco Manufacturing Company, Inc., concerning the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of three designs of pillows. Your letter was referred to this office for reply.

FACTS:

The merchandise consists of three designs of pillows. The outer shell of all three pillows is made from 100% polyester knit pile fabric. They are stuffed with a polyester fiberfill.

The first design resembles an elongated football. It is approximately 7.5 inches in diameter and 14.5 inches long. Applique work and embroidery are added to depict the laces on the football.

The second item is shaped to resemble the head of the “Elmo” character from “Sesame Street”. It is an oval shaped pillow to which a pair of stuffed eyes and nose has been sewn. The mouth is created with a line of embroidery. The pillow measures approximately 12 x 15 inches and is 4 inches thick.

The third item is designed to resemble the head of the “Bob the Builder” character from a children’s television program. The pillow is basically a round pillow, 14 inches in diameter and 4.5 inches thick. The eyes, nose and mouth are created with embroidery. The character appears to be wearing a hard hat which extends halfway down the front of the pillow. The brim of the hard hat extends outward from the pillow approximately 2 ½ inches and goes across the entire center portion of the pillow and is not stuffed. The character’s ears extend outward from the pillow approximately 2 inches from the sides and are not stuffed.

ISSUE:

What is the classification for the subject pillows?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUSA. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUSA provisions under consideration are as follows:

Other made up articles, including dress patterns:

Other:

Other

6307.90.9989 Other

Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:

Other:

Pillows, cushions and similar furnishings:

9404.90.2000 Other

9503 Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof:

9503.41.00 Stuffed toys and parts and accessories thereof

9503.90.00 Other

Chapter 95, HTSUSA, covers toys of all kinds, whether designed for the amusement of children or adults. Although the term “toy” is not specifically defined in the tariff, the ENs to Chapter 95, indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults.

The court in United States v. Topps Chewing Gum, Inc., 58 CCPA 157, C.A.D. 1022 1971), found that an article may be a toy within Chapter 95 if it meets the following definition:

While they may lack the material features to be a manipulative plaything as such, and will likely be used as an interesting or novelty decorative utility object, it is clear that the article, with its cartoon-like, comical appearance, or scary look is designed primarily for amusement purposes and as a source of frivolous entertainment for children and adults. In other words, its appearance generates the same type of emotional reaction one derives from playing with objects commonly recognized as toys and this use is its principle use.

Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value to be classified as a toy. See HQ 960479 (November 24, 2000) (the primary use of a pillow-like article designed to resemble various creatures is in its amusement value, not its use as a pillow); HQ 958785 (July 26, 1996) (a “Lean On Me Activity Bolster” for a small child was properly classified in heading 9503 because the primary use of the item was as a toy); HQ 951309 (April 26, 1993) (the primary value of M&M novelty figures designed as lids for containers filled with candy was the play value; the utilitarian aspect of the merchandise is temporary and incidental to the amusement factor).

The football shaped pillow is close to the size and design of a real football. We find that the purchaser is likely to buy and use the football pillow in similar ways that an actual football would be used. Therefore we find that the football is created with the intent to amuse and is classifiable as a toy in subheading 9503.90.00, HTSUSA.

Although the two character pillows in this case have a cartoon-like, comical appearance, we do not find that they will generate an emotional reaction one derives from playing with toys. We do not believe that the “primary” reason these pillows were created was, to amuse. Further, these two pillows are facial depictions only and do not have any other body parts. Customs has classified in subheadings 9503.41 through 9503.49, HTSUSA, the provisions for toys representing animals or non-human creatures, those toy animals or creatures which are full or reasonably full-figured depictions of the animals or creatures which they seek to represent. The figures must be fully configured in the sense that they are an articulation of the character in three dimensions, i.e. a representation in a sculptured form. See HQ 951533 (June 17, 1992), HQ 957560 (October 12, 1995), and HQ 957617 (May 3, 1995).

In the case of Louis Marx & Co., Inc. v. United States, 66 Cust. Ct. 139, C.D. 4183 (1971), the court stated that "`figures of animate objects' must be read to mean forms or representations of humans or animals." While C.D. 4183 concerned item 737.30, Tariff Schedules of the United States (TSUS), this predecessor tariff provision corresponds to subheading 9503.41.00, HTSUSA. In HRL 079594, we stated that Customs position has been that the phrase "figures of animate objects" refers to a clearly defined configuration of an animate object in a three-dimensional form. It is, therefore, clear that there is both judicial and administrative support for the notion that the provisions for toys representing animals and non-human creatures require that a toy figure must be a full or reasonably full-figured depiction of the animal/creature it seeks to represent and that figure must be a soft, sculptured edition or an articulation in three dimensions of the head, torso, and appendages of the character being portrayed. See HQ 963390 (November 24, 2000).

In the instant case, the “Elmo” and “Bob the Builder” shaped pillows do not have a clear form or representation of a character, animal or creature. These pillows are only of the face of the character. Therefore, since we do not believe the primary use of these articles is to amuse and the articles are not full figured representations, we find that the “Elmo” and “Bob the Builder” pillows do not meet the description of toys under heading 9503, HTSUSA.

Having excluded classification under heading 9503, we must determine whether the “Elmo” and “Bob the Builder” stuffed articles are classifiable as pillows in heading 9404, HTSUSA, or as other made up articles in heading 6307, HTSUSA.

A pillow is defined by Webster's Third New International Dictionary, Unabridged (1986) as "something used to support the head of a person resting or sleeping; esp: a sack or bag made typically of cloth and filled with a soft or resilient material (as feathers, down, hair, sponge rubber): CUSHION."

In defining cushions and pillows. The Random House Dictionary of the English Language, the Unabridged Edition (1983) states at p. 357, "CUSHION, PILLOW, BOLSTER agree in being cases filled with a material more or less resilient, intended to be used as supports for the body or parts of it. A CUSHION is a soft pad used to sit, lie, or kneel on, or to lean against: a number of cushions on a sofa; cushions on pews in a church. A PILLOW is a bag or case filled with feathers, down, or other soft material, usually to support the head: to sleep with a pillow under one's head."

In HQ 963390 (November 24, 2000), Customs stated “It is the opinion of this office that so long as pillow-like articles are sufficient in size and stuffing to be capable of providing support, classification in heading 9404, HTSUSA, is not excluded.” See also HQ 962131 (November 2, 2000); HQ 957617 (May 3, 1995).

If these articles do not fall within the more specific heading 9404, we turn to heading 6307, HTSUSA, which provides for “[o]ther made up articles” of textiles. Section Note 7(e) of Section XI, states that “made up” means “[a]ssembled by sewing”. The ENs regarding heading 6307 state:

This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.

Where pillow-like objects have not been of sufficient size or stuffing to offer support, or where the construction is such that the shape or material would make it uncomfortable or unlikely to be used as a support for the body; Customs classifies these articles in heading 6307, HTSUSA. See NY 883688 (March 24, 1993), regarding pillows with battery operated lights on the front; HQ 951533 (June 17, 1992), regarding a “Beast” pillow; HQ 951737 (June 8, 1992), regarding a “Belle” pillow. In HQ 086646 (June 8, 1990), Customs ruled that pillows shaped like motorcycles and punching bags were not designed to offer support to the sleeper. Where a stuffed article is of a small size, Customs has found that the article is not classifiable in heading 9404, HTSUSA. See HQ 087316 (July 9, 1990), regarding a ring bearer’s pillow, a baby’s sleeping sign and a tooth fairy pillow; HQ 086056 (March 1, 1990), finding a 6 inch sachet-type pillow is not classified in heading 9404, HTSUSA; HRL 046377 (October 19, 1976), ruling that a 4” x 6” tooth fairy pillow is too small to support the head or body and therefore may not be classified as a pillow, cushion, mattress or similar furnishing.

The “Elmo” and “Bob the Builder” pillows are fully stuffed beyond that merely needed to provide for the shape. We find that they are of a large enough size and shape and are likely to be used to offer support and comfortably cradle a person’s head or to support a person’s back. Therefore, these pillows are classified in subheading 9404.90.2000, HTSUSA, which provides for pillows, cushions and similar furnishings. Because we have determined that these articles are eo nomine classifiable as pillows in subheading 9409.90.2000, HTSUSA, heading 6307, HTSUSA is not appropriate.

HOLDING:

The football shaped pillow with 100% polyester fabric and stuffed with polyester fiberfill, is classifiable in subheading 9503.90.00, HTSUSA, as stuffed toys. The “Elmo” and “Bob the Builder” shaped pillows, both with 100% polyester fabric and stuffed with polyester fiberfill, are classifiable in subheading 9404.90.2000, HTSUSA, as pillows, cushions and similar furnishings.

The general column one rate of duty for the football shaped pillow is free. The general column one rate of duty for the “Elmo” and “Bob the Builder” shaped pillows is 6 percent ad valorem. There is no textile quota category applicable to these provisions.

Sincerely,

John Durant, Director
Commercial Rulings Division

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